Complaint: Michael Smith v. Southern Nuclear |
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BEFORE THE UNITED STATES DEPARTMENT OF LABOR ASSISTANT SECRETARY OF LABOR FOR OCCUPATIONAL SAFETY AND HEALTH
Michael J. Smith
200 Sequoyah Drive
Dothan, AL 36303
Complainant,
v.
Southern Company
30 Ivan Allen Jr. Boulevard, NW
Athlanta, Georgia 30308
Southern Nuclear Company
40 Inverness Center Parkway
Birmingham, AL 35240
Respondents.
COMPLAINT
INTRODUCTION
1. Complainant Michael Smith is a Senior Engineer at respondent Southern Company's ("Southern" or "the Company") Joseph M. Farley Nuclear Plant ("Farley"), operated by Respondent Southern Nuclear Company. Mr. Smith seeks to recover compensatory damages and equitable relief arising from the respondents' harassment and adverse employment actions taken against Mr. Smith in retaliation for his reporting or nuclear safety issues at the Farley plant, in violation of Section 211 of the Energy Reorganization Act, 42 U.S.C. § 5851 ("ERA" or "the Act"). Within days of Mr. Smith reporting nuclear safety concerns and acts of retaliation by Farley management to the Nuclear Regulatory Commission ("NRC"), and literally within hours of his submission of Condition Reports documenting deficiencies regarding the plants safety culture, respondents took blatantly illegal adverse actions against Mr. Smith, including escorting him from the plant, taking his badge, making him submit to a fitness for duty exam, placing him on administrative leave, and interfering with his employment at the Fossil Plant, because of their stated concern that his submission of CRs earlier in the day demonstrated that Mr. Smith constituted a "danger to nuclear safety." They further insisted that his submission of CRs warranted that he be given a psychological evaluation by the Employee Assistance Program. After reinstating Mr. Smith following a Five week suspension, respondents gave Mr. Smith unjustifiably negative performance evaluation, setting the groundwork for his termination from Farley. The safety concerns raised by Mr. Smith which led to the adverse actions complained of herein have been accepted for investigation by the NRC.
JURISDICTION
2. The Department of Labor has jurisdiction over this matter pursuant to 42 U.S.C. § 5851.
PARTIES
3. Complainant Michael J. Smith resides at 200 Sequoyah Drive, Dothan, Alabama 36303.
4. Respondent Southern nuclear Company is a subsidiary of Respondent Southern Company. Southern Company is located at 30 Ivan Allen Jr. Boulevard, NW Atlanta, Georgia 30308. Southern Nuclear is headquartered at 40 Inverness Center Parkway, Birmingham, AL 35240, and operates the Farley Nuclear Plant, located in Dothan, Alabama.
STATEMENT OF FACTS
5. In June 2000, prior to graduating from college, Mr. Smith held an internship with Southern as a Plant Modifications Engineer at Farley. In May 2001, Mr. Smith received his Bachelor, of Science degree in Chemical Engineering with a concentration in Pulp and Paper from Auburn University in Auburn, Alabama. Upon his graduation from college, and in recognition or his superior performance during his internship, respondents hired Mr. Smith as HVAC System Engineer at the Company.
6. In this role, Mr. Smith was responsible for administering contracts for all HVAC vendor support, testing ventilation filters, monitoring control room habitability, testing room cooler heat exchangers and developing a long range plan for the scheduling of design change budgeting and implementation in order to increase system health and equipment reliability.
7. In January 2003, in recognition of Mr. Smith's outstanding performance, respondents promoted him to the position of Lead HVAC System Engineer. In July 2006, in recognition of Mr. Smith's consistently exemplary performance, respondents promoted him to the position of Senior Engineer.
8. Since Mr. Smith began his employment at Farley, he has amassed several HVAC operations skills and qualifications, including Harvard School of Public Health In-Place Filter Testing training, Trane Centrifugal Chiller Teardown training, Alabama Power HVAC Troubleshooting of HVAC Electrical and Refrigerant Systems training, membership in the American Society of Heating, Refrigerating and Air-Conditioning Engineers (ASHRAE) and EPA Universal Technician Certification.
9. HVAC systems are vital to power production and safety in nuclear plants. For example, Control Room HVAC systems are designed to limit operator exposure in the event of a radiological accident and to minimize exposure to toxic gases or smoke by limiting infiltration. In order For these objectives to be accomplished, HVAC Control Rooms must function properly.
Southern's Retaliation Against Mr. Smith
10. Mr. Smith has vigorously and appropriately pursued safety issues through writing and investigating CRs within the past year at Farley. Besides raising specific safety issues (both nuclear and non-nuclear), Mr. Smith has also repeatedly raised serious concerns about the management's general ineffectiveness in promptly resolving safety concerns trough its Conditions Reports System.
11. Since January 2007, Mr. Smith has submitted 67 Condition Reports ("CRs") to Farley management documenting his safety concerns and efforts to improve equipment reliability. Since Mr. Smith has submitted these CRs and especially the ones noted below, Southern officials have subjected him to harassment and intimidation, including through the issuance of negative evaluations, placing him on a PIP, placing him on administrative leave and requiring that he take a Fitness for Duty test. Commencing in approximately January 2001 and continuing through the present, Mr. Smith has been subjected to a steady stream or retaliatory actions as a result of his vigorous pursuit of nuclear safety concerns.
12. Up until January 2007, Mr. Smith's supervisors including Dave Lisenby and John Cheney, had informed Mr. Smith that he was fully meeting expectations and performing his job well. However, on January 29, 2001, in retaliation for his safety complaints and reports to the Company's Employee Concerns Program, Mr. Lisenby and Steve Chesnut, Engineering Manager, informed Mr. Smith that he was not meeting management expectations and would be receiving a "3" ranking in his overall 2006 evaluation. Farley management did not permit Mr. Smith's interim supervisors Mr. Cheney, to provide any input into his overall 2006 evaluation. Mr. Cheney was not allowed to participate in any of Mr. Smith's evaluation meetings even though he directly supervised his work during the two to six month period in which Mr. Smith's performance allegedly declined, as Farley management had claimed.
13. Mr. Smith requested to be transfered to the Maintenance department or Operations departament. Steve Chesnut, Engineering Manager, refused to authorize the transfer, stating that Mr. Smith's transfer was not an option based on "performance problems." When Mr. Smith requested to enroll in the SRO Operations License class, Mr. Chesnut denied this request, stating that Mr. Smith "was not what Southern Company was looking for in leadership."
14. On January 30, 2007, Mr. Smith filed a complaint retaliation based on the Company's issuance of a negative evaluation without any input from his supervisor and Mr. Chesnut's refusal to authorize his transfer to another department and training. This complaint was filed with the Company's Employee Concerns Program.
15. On March 15, 2007, Mr. Smith submitted CR 2007102337 through which he requested the addition of Control Room Integrity Program and Ventilation Filter Testing Program to NMP-ES-009 Engineering Programs. Mr. Smith believed that the inclusion of testing program would allow for the development or Program Notebooks, Health Reports, a Fleet Program Owner, and Technical team. These Programs were located within Tech Specs (5.5.18 & 5.5.11 respectively) and therefore, the incorporation of this new procedure would improve interaction between the fleet and upper management. Ultimately, the Control Room Integrity Program and Ventilation Filter Testing program would provide management assessments and oversight of the HVAC systems. After reviewing this CR, Mr. Medlock directed Mr. Smith not to write any more CRs on these topics. His tone was berating and angry.
16. On March 19, 2007, Mr. Smith filed CR 2007102435 to report that there had only been two CCB Subcommittee meetings that year out of six planned meetings and there had been no CCB meetings out of three scheduled meetings. He noted that with the outage in April 2007, it was very unlikely there would be a CCB or CCB Subcommittee during the month. Due to these recurring delays, Southern Nuclear delayed making needed design changes for improving plant equipment and reliability. These fixes were not implemented in a timely manner, which further increased the Design backlog, Maintenance backlog and Operational Work Around. Mr. Smith requested that the management team review this negative trend. Me also requested benchmarking of other INPO 1 plants to determine adequate means of improving the design change process from conception to implementation.
17. A short time after Mr. Smith submitted CR 2007102435, top managers from Farley, including Randy Johnson, Vice President, Sonny Bargeron, Plant Manager, Farley's Assistant General Managers, and others, met to discuss the CR. Steve Chesnut made derogatory remarks about Mr. Smith at the meeting and dismissed out of hand the concerns raised by Mr. Smith. Mr. Chesnut stated that he considered Mr. Smith's submission or this CR to be a "personnel problem" that he would "need to the care of" - a comment that was subsequently relayed to Mr. Smith and was understood to be a threat.
18. In March 2007, Mr. Smith's new supervisor, Clint Medlock, directed Mr. Smith to discontinue his attendance at morning management meetings despite the fact that Mr. Smith had been receiving positive feedback from Engineering supervisors, shift and department managers regarding his participating in these meetings. Mr. Medlock insisted that there was no longer any "management expectation" that Mr. Smith should attend these meetings. Subsequently, on March 22, 2007, Mr. Medlock told Mr. Smith to find another job "outside of Southern Company" Removal of Mr. Smith's, duties constituted an adverse employment action.
19. Dissatisfied with management's response to his concerns of retaliation and his negative evaluation, Mr. Smith requested that Southern conduct an independent review of his job performance in 2006. The Company denied this request. On April 10, 2007, in a meeting with AGM Todd Youngblood to discuss Mr. Smith's evaluation, Mr. Youngblood reiterated to Mr. Smith that the Company would not conduct an independent review of his 2006 work performance. At this time, Mr. Smith requested to be transferred to another department. Mr. Youngblood denied this request.
20. On May 1, 2007, Southern placed Mr. Smith on a Performance Improvement Plan ("PIP"). It did so to create a basis to terminate his employment at a subsequent date.
21. On June 12, 2007, Mr. Smith met with Vice President Randy Johnson to discuss his safety concerns and management's response to those concerns. Mr. Johnson, like all managers at Plant, was aware of the CRs that Mr. Smith had submitted and the concerns that he had expressed. During the course of their meeting, Mr. Smith requested to be transfered to another department because of the retaliatory treatment he had been subjected to for having submitted safety concerns. Mr. Johnson denied his request, stating that he needed Mr. Chesnut's approval in order to allow Mr. Smith's transfer.
22. On July 11, 2007, Mr. Smith filed CR 2007106111 regarding a "Negative Trend." He reported that A1 Reports were not being reviewed and approved by ES management/supervision in a timely manner. HVAC A1 Reports E15, E16 for May 2007 had not been reviewed which prevented him from meeting the management expectation or having reports completed and reviewed by the 14th of the month. He added that discussions with Maintenance Rule Coordinator revealed that this is a recurring issue and the A1 reports are not receiving the appropriate priority and review.
23. After receiving CR 2007106717, Mr. Medlock admonished Mr. Smith that he needed to come to him before or submitting CRs. Once again, his tone was harsh and threatening.
24. On July 15, 2007, Mr. Smith reiterated this concern in CR 2007106851 when he again reported the negative trend that A1 Reports were not being reviewed and approved by ES management/supervision in a timely manner. HVAC A1 Reports E15, E16 for June 2001 had not been reviewed which prevented him from meeting management expectation of having reports completed and reviewed by the 14th of the month. A1 Reports E15, E16 for May 2007 was documented as overdue in CR 2001106117.
25. Dissatisfied with the Company's response, Mr. Smith once again addressed the issue or Southern Nuclear's failure to review and process A1 reports in a timely manner through his submission of CR 2001106852. He reported that because of the continuing negative trend documented in CRs 2007106711 and 2007106851, a broadness review was performed for the timeliness of review or A1 Reports by ES management/ supervision during the current calendar year. He noted that the current reports due for the month or June 2007, 8 of 14 did not meet "management expectations" by being reviewed and approved by the 14th of the month. Elec/I&C supervisor, Bob Smith, completed 6 of 6 in a timely manner. Over the span of the January 2007 to June 2007 months, 68 or 99 (69%) did not meet management expectations of being reviewed in a timely manner. Mr. Smith's discussions with Maintenance Rule Coordinator reveal that the frequent reminders to management/supervision of this known expectation often went unheeded. A1 reports were not receiving the appropriate priority and review by ES management/supervision For this regulatory requirement.
26. On July 23, 2007, Mr. Smith submitted CR 2001107101 to document his concerns that Farley's HVAC System was grossly understaffed. He reported that based on recent feedback from ES management/supervision, the HVAC system engineer was clearly overextended and was performing too much work for and providing too much support to the Operations and Maintenance departments. Mr. Smith noted that he had been performing, extensive work acting as a project manager for system upgrades and replacements as well as troubleshooting equipment and monitoring field activities during system maintenance. He noted that as a result or his numerous duties and responsibilities, including for the Tech Spec required Ventilation Filter Testing Program which requires substantial amount of time for proper coordination of activities as well as numerous hours in the field, he had been directed to perform less work in the form of system walk-downs, system monitoring, vendor oversight, or other plant activities. Mr. Smith reported that from the ES management/supervision viewpoint, a system engineer's time is better spent in his cubicle and not in the field performing any or the above activities.
27. Through CR 2007107107, Mr. Smith requested that Southern develop a maintenance counterpart directly devoted to HVAC similar to that of AOV, MOV, and Diesel Generators which all had an ES system/component engineer as well as a maintenance counterpart. The above activities would be transferred to the maintenance department which would allow the ES system engineer to better interact and for ES supervision to provide direct oversight over daily activities.
28. On July 23, 2007, Mr. Medlock berated Mr. Smith for submitting CR 2007107101. He told Mr. Smith that it was "inappropriate" and "not Southern style" for him to have done so. Mr. Medlock further berated Mr. Smith for not contacting him prior to writing CR 2007101107. During this same conversation, Mr. Medlock chastised Mr. Smith for applying for and obtaining interviews for other positions within the Company.
29. On July 25, 2007, Mr. Smith filed a concern with Southern's Employee Concern program regarding Mr. Chesnut's retaliatory behavior on July 23, 2007. He charged that management had retaliated against him for reporting a concern and filing a CR about that concern to address regulatory requirements.
30. On August 6, 2007, Mr. Smith received telephone calls from a number of employees from Corporate, Hatch, and Vogtle. They informed him that other nuclear engineers were being treated in a similar manner as documented in CR 2007101107, but that they were too afraid to document their concerns for fear of retaliation from management.
31. On August 9, 2007, Mr. Smith met with Eddy Crowe, resident Inspector of the Nuclear Regulatory Comission, and NRC PI&R Inspector Robert Carrion, to express concerns that he had been subjected to harassment and intimidation as a result of his protected nuclear safety activities. He specifically informed Messrs. Crowe and Carrion that engineering support management had harassed him for raising safety issues pursuant to Farley's CR process. He further informed them that issues were not being entered into the CR system as a result of management pressure.
32. During the course of this meeting, Mr. Smith informed the NRC that Farley had a lack or concern for maintaining a safety conscious work environment, that he and other nuclear engineers felt harassed and intimidated for reporting safety concerns, and that Farley management never advised him or other workers of their right to go to the NRC or the U.S. Department of Labor to resolve concerns or as potential avenues of assistance.
33. Mr. Smith's co-workers were aware that he had gone to the NRC to report his concerns about harassment and intimidation. Upon information and belief, engineering support management knew or formed a belief that Mr. Smith had in fact met with the NRC to express his concerns about harassment and intimidation at Farley.
34. On August 10, 2007, after applying for several other positions within the Company, Mr. Smith received offer for an Engineering position from Southern Company's fossil plant, Plant Branch. On August 13, 2007, Mr. Smith accepted the offer.
35. On August 13, 2007, Mr. Smith submitted a series of CRs to document safety concerns. In CR 2007107945, Mr. Smith documented a concern that small holes were found in 8 or 21 HEPA filters. Mr. Smith noted that DOP testing of HEPA filters is required as part of Farley's commitment to the NRC to verify isokinesis of rad monitor sampling for offsite releases. Mr. Smith further recommended that the Company perform an evaluation to determine if the rad monitor sampling was valid in "this degraded condition." In CR 2007107955, Mr. Smith reported that "[i]n order to maintain proper configuration control of power plant equipment, ES needs to generate an ABN per NMP-ES-026 to update U359090 to reflect replacement of the U2 SFP AHU Supply Fan Motor N2V48c002 adjustable sheave to fixed sheave." While the issues raised by Mr. Smith have important safety implications and Farley's failure to replace the filters is in violation of Southern's commitment to the NRC, Site engineering closed out this CR to an Action Item with a due date of April 2008.
36. On August 15, 2007, Valerie Wade and Mr. Medlock discussed a start date for Mr. Smith at Plant Branch. Ms.Wade recommended a September 10, 2007, start date, which Mr. Smith and she had earlier agreed upon. Mr. Medlock urged that Mr. Smith have an August 27, 2007, start date which was less than the standard two week notice period. Following his conversation with Ms.Wade, Mr. Medlock discussed with Mr. Smith of his acceptance of the offer and that his official start date was to be August 27, 2007, and not the September 10th date previously agreed upon.
37. Early in the morning of August 16, 2007, Mr. Smith submitted CR 2007108054 to management to document a safety concern. He reported that OPS Shift Supervisor, Richard Bullock, demonstrated the proper use of human performance tools by demonstrating a "Questioning Attitude" toward the validity of data collection results performed by ES during performance of FNP-0-STP-26.0. Data collection to support requirements of the Control Room Integrity Program was performed by ES as a secondary role to OPS performance or FNP-0-STP-26.0. System was aligned correctly to support FNP-0-STP-26.0. Mr. Smith further reported that because of Mr. Bullock's sound understanding of the system design of the Control Room HVAC and requirements of the Control Room Integrity Program, Mr. Bullock correctly questioned the validity of the data and recognized that the Control Room HVAC was not correctly aligned to support accurate results for ES. He emphasized that this CR was to document proper use of human performance tools and demonstration of OPS ownership of unit operation.
38. Later that same morning on August 16, 2007, Mr. Smith submitted CR 2007108055 as a follow-up to CR 2007108054. He reported that if not for the questioning attitude of the OPS Shift Supervisor, inaccurate data would have been utilized for the Tech Spec Requirements of the Control Room Integrity Program. The primary apparent cause to this potential threat of a regulatory requirement was likely time pressure and performance of regulatory requirements by an untrained and inexperienced engineer.
39. He added that because of high staff turnover, in the Engineering Support department, challenges to the equipment reliability and safety culture of the plant were increasing. For example, since the year 2000, the following individuals have been assigned and turned over or currently maintain the responsibility as Breaker engineer: Bob Louvern, Andrew Neal, Caroline Gallardo, Mark Simmons and Greg Cook. This included but is not limited to 4160 breaker and MOC switch concerns. Since the year 2000, the following individuals have been assigned and turned over or maintain the responsibility as CVCS engineer: Damn Gard, Taylor Joseph, Meredith Raybon, Chip Westberry and Hillard Cooper. This has included but is not limited to a NRC Yellow Finding/RHR MOV Torque Switch/Encapsulation Vessel concerns. This negative trend was occurring in various other key component systems (7300/SSPS, Diesel Generators, RCS/RCP, MSIV/Main Steam). There was the potential for dangerously setting up plant personnel for failure. The instability of the Engineering department resulted in less than optimal customer service to the Operations and Maintenance departments leading to the increased potential for breaches of overall plant safety.
40. On August 16, 2007, only hours after Mr. Smith submitted CRs 2007108054 and 2007108055 which documented safety concerns surrounding inferior data in Control Room HVAC systems and high staff turnover rates in the engineering department, the Company placed Mr. Smith on administrative leave and required that he be tested for fitness for duty.
41. Specifically, Mr. Smith had generated CRs 2007108054 and 2007108055 early on the morning of August 16, 2007. At 6:45 A.M., Mr. Medlock confronted Mr. Smith and was extremely angry at him for initiating the concern without first notifying him. At 7:00 A.M., during the morning meeting for the Engineering department, Mr. Medlock announced to the group that all Engineers were expected to notify him prior to initiating any CRs. His tone was angry and berating, and it was clear to all present that his comments were a direct response to Mr. Smith's submission of CRs earlier that morning.
42. At 8:45 A.M., following the meeting referenced in paragraph 41 above, Mr. Medlock escorted Mr. Smith to Mr. Youngblood's office. Mr. Youngblood stated that upon review of the CRs that Mr. Smith had submitted that morning, Mr. Smith was a threat to nuclear safety. Mr. Youngblood mandated that Mr. Smith be tested for fitness for duty, turn over his badge, be escorted offsite and be placed on administrative leave.
43. After Mr. Youngblood reprimanded Mr. Smith for submitting his CRs, a security guard escorted Mr. Smith out of the plant to the nurses' station. He did so in the presence of Mr. Smith's coworkers causing him to suffer maximum humiliation and embarrassment. After he arrived at the nurses' station, the nurse administering the test requested supporting documentation from Mr. Smith's supervisors for the need for the Fitness for Duty test. Approximately an hour or two later, Mr. Medlock presented an incident report to the nurse as setting out the basis for requiring Mr. Smith to be tested. The incident report cited the fact that Mr. Smith had submitted the CRs at 2:46 A.M. and 3:06 A.M. as the rationale for his removal from the plant and the requirement that he submit to a fitness for duty test. After providing blood alcohol (breathalyzer) and urine specimens and upon Medlock's arrival hours later, Medlock reviewed the incident report with Mr. Smith. After reviewing Medlock's accusations in the incident report, Mr. Smith began to fill out a response, through which he stated that he had been retaliated for filing a safety concern and his rights had been violated. Mr. Medlock directed that he stop writing out the incident report, and reiterated to Mr. Smith that "You (Smith) would never be on plant site again." His tone was intimidating.
44. That same day, at 2:30 P.M., Mr. Smith received a call from Ms.Wade. She advised him that Farley had contacted her stating that Mr. Smith had fallen below expectations for 2006, mid-year 2007 and had been placed on administrative leave. As the result of this information, Ms.Wade rescinded the offer of employment.
45. On the day of the incident, one engineer came forward and told Mr. Youngblood that Mr. Smith's conduct on the morning of the suspension was totally proper. In the days immediately following Mr. Smith being placed on administrative leave, Mr. Youngblood interviewed several Farley engineers who disputed Mr. Medlock's account of Mr. Smith's conduct on the morning of the suspension, and made clear that Mr. Smith had not engaged in boastful behavior about his submission of CRs or other inappropriate behavior later cited by Mr. Medlock as forming the basis for Mr. Smith's suspension.
46. On August 17,2007, Mr. Smith notified the NRC that he had been placed on administrative leave and that Respondents had pulled his badge as s result of his submission of CRs 2007108504 and 2007108055. .
47. On August 23, 2007, Mr. Smith was called onsite to Farley to detail what had occurred on the morning of August 16, 2007. Chere Johnson, HR Manager, and Mr. Youngblood told him that they were conducting an investigation and were interviewing him pursuant to that investigation. Even though Mr. Smith fully refuted Mr. Medlock's false and baseless allegation and forthrightly answered to all questions posed to him, Respondents failed to reinstate him to his position. Tellingly, Mr. Youngblood no longer pressed for Mr. Smith to be subjected to a psychological evaluation. Upon information and, Mr. Smith's supervisors sought management approval to terminate Mr. Smith's employment at that time, but such approval was not given.
48. On August 28, 2007, Mr. Smith notified Mr. Shaeffer by email of his concern that a culture of intimidation had been fostered at Farley and that nuclear workers were fearful of raising safetly concerns with Farley's management. He further charged that failures of RHR Encapsulated Motor Operated Valves (MOVs) had occurred, and that Farley management decided to document these failures as one failure, rather than as multiple failures to conceal the significance of the events from the NRC. Counting the MOV failures as one failure directly manipulated the Mitigating Systems Perfomance Indicator ("MSPI") reporting color, thereby not alerting the NRC to the significance of the events.
49. Mr. Smith also informed the NRC, by email dated August 28, 2007, that Farley management had directed the apparent cause findings of Condition Report (CR) 2006104961 to be similar to that of CR 2003000510, even though the apparent cause leader was requesting additional investigations to determine the true cause. He further stated that management coerced the apparent cause determination in order to have a timely close out, given that the oppsite unit was in an outage, and not wanting to go into the encapsulation valve. Finally, Mr. Smith charged that Farley management did not pursue all options to address adequately a known repetitive failure.
50. By letter dated September 7, 2007, the NRC notified Mr. Smith that it had accepted for investigation, the issues of harassment and intimidation raised by Mr. Smith during their meeting of August 9, 2007. The NRC advised Mr. Smith of his right to file a charge of discrimination with the Department of Labor.
51. On September 20, 2007 Mr. Smith filed by telefax a complaint of discrimination with the U.S. Department of Labor, Occupational safety and Health Administration ("OSHA"),pursuant to Section 211 of the Energy Reorganization Act. Through this complaint, Mr. Smith alleged that he had been subjected to adverse employment actions as a result of his protected activity, in violation of Section 211 of the Energy Reorganization Act of 1974, 42 U.S.C. § 5851.
52. Mr. Smith was on administrative leave for five weeks. Ommediately upon his return on September 24, 2007, Respondents issued him another negative evaluation rating him as "Falls Below Expectations" and placing him on yet another PIP. The criticisms made of Mr. Smith's performance were unjustified and were in retaliation for his protected activity. Since returning from leave, Respondents have been closely and excessively scrutinizing Mr. Smith's action
53. By letter dated September 27, 2007, the NRC accepted for investigation the concerns expressed in his email to Mr. Shaeffer, Branch Chief, Division of Reactor Projects, referenced above.
54. Respondents' harassment and intimidation of Mr. Smith is part and parcel of their pattern and practice of discriminating against employees who have engaged in protected activity, in violation of section 211 of the Energy Reorganization act of 1974, 42 U.S.C. § 5851. Respondents have created a culture in which conscientious employees, like Mr. Smith, fear reporting nuclear safety concerns for fear that they will suffer retaliation. Indeed, Southern Company's 2006 Employee Survey confirms that employees have significant concern about whether leaders "consistently exhibit Southern Style"
55. As result of Respondents' discrimination, retaliation, harassment and intimidation of Mr. Smith, he has suffered significant emotional distress, reputational damage, and lost career opportunities.
LEGAL CLAIMS
Count I
Retaliation in Violation of the Energy Reorganization Act, 42 U.S.C. § 5851
56. The foregoing paragraphs 1 through 55 are realleged and incorporated herein by reference.
57. The employee protection provision of Section 211 of the Energy Reorganization Act ("ERA"), 42 U.S.C. 5851(a), provides, in relevant part, that:
(a) Discrimination against employee:
(1) No employee may discharge any employee or discriminate against any employee with respect to compensation, terms, conditions, or privileges of employment because the employee (or any person acting pursuant to a request of the employee) -
(A) notified his employer of alleged violation of this chapter or the Atomic Energy Act of 1954(42 U.S.C.2011 et seq.);
(B) commenced, caused to be commenced, or is about to commence or cause to be commenced a proceeding under this chapter or the Atomic Energy Act of 1954, as amended, or a proceeding for the administration or enforcement of any requirement imposed under this chapter or the Atomic Energy Act of 1954, as amended;
(C) assisted or participated or is about to assist or participate in any manner in such a proceeding or in any other manner in such a proceeding or in any other action to carry out the purposes of this chapter or the Atomic Energy Act of 1954, as amended. 42 U.S.C. § 5851(a)(emphasis added).
58. Southern is an employer covered by Section 211 of the Energy Reorganization Act ("ERA"), 42 U.S.C. § 5851.
59. Mr. Smith is an employee covered by section 211 of the Energy Reorganization Act ("ERA"), 42 U.S.C. § 5851.
60. Mr. Smith engaged in protected activity under the ERA through his submissions of CRs, his contacts with the NRC, and his filing of a complaint of discrimination with the department of Labor. Southern was aware of this protected activity.
61. Southern subjected Mr. Smith to adverse action under the ERA, including but not limited to including escorting him from the plant, taking his badge, making him submit to a fitness for duty exam, placing him on administrative leave, because of their stated concern that his submission of CRs earlier in the day demonstrated that Mr. Smith constituted a "danger to nuclear safety." They further, insisted that his submission of CRs warranted that he be given a psychological evaluation by the Employee Assistance Program, which constituted a further act of intimidation and harassment. Respondents further discriminated against Mr. Smith by interfering with his employment at the Fossil Plant resulting in rescission of a job offer. After reinstating Mr. Smith following a five week suspension, respondents gave Mr. Smith an unjustifiably negative performance evaluation, setting the groundwork for his termination from Farley.
62. Mr. Smith's protected activity under the ERA was a contributing factor to the adverse actions taken against him by Respondents. As a direct and proximate result of Respondents' unlawful actions, Mr. Smith has suffered significant financial losses, as well as pain, suffering and anxiety.
REQUESTED RELIEF
1. An award to Mr. Smith of compensatory damages in an amount to be proven at trial, but in any event not less than $ 1,000,000;
2. An award of reasonable attorneys' fees and costs; and
3. All other relief that is deemed just.
Debra S. Katz
David J. Marshall
Nicole J. Williams
Katz, Marshall & Banks LPP
1718 Connecticut Avenue, N.W.
Washington, D.C. 20009
(202) 299-1140
Dated: November 1, 2007
